NEAL L. WEINSTEIN v. OLD ORCHARD BEACH FAMILY DENTISTRY, LLC, et al.
Yor-20-325
MAINE SUPREME JUDICIAL COURT
March 8, 2022
2022 ME 16
Decision: 2022 ME 16. Argued: November 4, 2021. Reporter of Decisions. Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ. Majority: MEAD, GORMAN, HORTON, and CONNORS, JJ. Dissent: JABAR and HUMPHREY, JJ. Dubitante: STANFILL, C.J.
[¶1] Neal L. Weinstein appeals from a judgment of the Superior Court (York County, Douglas, J.) dismissing Weinstein‘s seven-count complaint against Old Orchard Beach Family Dentistry, LLC, and Marina Narowetz. Weinstein challenges the court‘s dismissal of portions of four of those counts based on the application of
I. BACKGROUND
[¶2] In 2020, Weinstein, an attorney, filed a complaint against Marina Narowetz, DDS, and her dental practice, Old Orchard Beach Family Dentistry,
[¶3] Narowetz moved to dismiss all counts of the complaint on two alternative grounds—first, that the counts were subject to dismissal pursuant to
II. DISCUSSION
[¶4] The anti-SLAPP statute,
[¶7] Although section 556 does not define “actual injury,” we have interpreted the term to mean “a reasonably certain monetary valuation of the injury suffered by the plaintiff.” Desjardins, 2017 ME 99, ¶ 14, 162 A.3d 228 (quotation marks omitted); see Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 10, 847 A.2d 1169. “Actual injury could include . . . quantifiable losses of money or other resources or identifiable special damages.” Nader v. Me. Democratic Party (Nader I), 2012 ME 57, ¶ 38, 41 A.3d 551. We do not require the plaintiff to provide an “actuarial analysis” of such damages, Schelling v. Lindell, 2008 ME 59, ¶ 18, 942 A.2d 1226; damages may instead be determined based on “the exercise of judgment applied to facts in evidence” as long as those facts allow a calculation based on “reasonable, as distinguished from mathematical, certainty by the exercise of sound judgment.” Dairy Farm Leasing Co. v. Hartley, 395 A.2d 1135, 1140-41 (Me. 1978) (quotation marks omitted) (stating that damages “must not be left to mere guess or conjecture” (quotation marks omitted)).
[¶8] The existence of actual injury may be considered in this analysis only to the extent that the asserted injury was both alleged in the complaint and established on a prima facie basis in opposition to the special motion to dismiss. Desjardins, 2017 ME 99, ¶ 19, 162 A.3d 228 (“[B]oth parties must be limited in their anti-SLAPP filings to the universe of facts as actually alleged in the plaintiff‘s complaint.“). In Desjardins, for example, we affirmed the trial court‘s conclusion that the plaintiff failed to establish actual injury in the form of an attorney‘s retainer fee when the plaintiff did not seek that fee as a portion of his damages until filing the opposition to the special motion to dismiss. Id. ¶¶ 15, 19, 21. In Nader v. Maine Democratic Party (Nader II), we concluded that the plaintiff had not met his prima facie burden when he referenced facts in his complaint but provided no evidence of those facts, either in documents
[¶9] The corresponding requirements for both the complaint and the opposition allow the plaintiff to meet his prima facie burden while also preventing him from “alleging a new form of harm for the first time solely in response to the special motion to dismiss,” thereby “thwart[ing] the purpose of the anti-SLAPP statute by expanding the scope of the litigation that [the defendant] must defend against.” Desjardins, 2017 ME 99, ¶ 19, 162 A.3d 228. In this way, among others, complaints challenged by an anti-SLAPP special motion to dismiss differ from other civil complaints because a complaint‘s notice pleading may be insufficient in the face of a special motion to dismiss. See id. ¶ 17. The forgiving nature of notice pleading requires a plaintiff to provide only “fair notice of the cause of action by providing a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (quotation marks omitted); see
[¶10] As we have noted, however, “[t]he special motion to dismiss procedure in anti-SLAPP matters is . . . a more precise mechanism” for which notice pleading is insufficient. Desjardins, 2017 ME 99, ¶ 17, 162 A.3d 228;
[¶11] Here, the only form of injury that Weinstein both referenced in his complaint and provided evidence about in his affidavit opposing the special motion to dismiss was injury in the form of embarrassment, shame, humiliation, emotional distress, and harm to his reputation. Such “emotional injury” alone does not constitute actual injury for anti-SLAPP purposes,
[¶13] Weinstein also asserts that he suffered damages in the form of lost billable hours resulting from the time that he and his paralegal spent in preparing responses to Narowetz‘s complaints to the Boards of Overseers.4
Weinstein‘s presentation of evidence of actual injury in the form of lost billable hours is indistinguishable, however, from that unsuccessfully undertaken by the plaintiff in Desjardins. In Desjardins, the plaintiff had briefly mentioned in his complaint that he had retained counsel to investigate the defendant‘s statements, but the complaint otherwise “never purported to seek damages for that cost . . . or to otherwise suggest that his retention of counsel constituted any aspect of the damages he was seeking in the litigation.” 2017 ME 99, ¶¶ 16, 19, 162 A.3d 228. Rather, the complaint alleged harm only in the form of emotional distress and reputational injury. Id. In opposition to the defendant‘s special motion to dismiss, the plaintiff alleged that his actual injury included a five-hundred-dollar expenditure for retaining the attorney. Id. ¶ 15. Because the attorney‘s retainer fee constituted “no part of [the plaintiff‘s] request for damages in his complaint,” we rejected his attempt to provide in his opposition to the special motion to dismiss prima facie evidence of that fee. Id. ¶ 19.
[¶14] Likewise, in his complaint, Weinstein alleged only that “[t]he Plaintiff and his staff were forced to prepare a detailed response to the complaint against him, with the Massachusetts Board[] of Overseers of the
[¶15] Weinstein also challenges the court‘s dismissal of his claims regarding statements that Narowetz made to the Dental Board. The Superior Court properly concluded that Narowetz‘s statements to the Dental Board were protected by the absolute privileges that preclude civil liability concerning relevant statements made in judicial and quasi-judicial pleadings, see Dineen v. Daughan, 381 A.2d 663, 664 (Me. 1978), and during judicial and quasi-judicial proceedings, see Bradbury v. GMAC Mortg., LLC, 2012 ME 131, ¶ 8, 58 A.3d 1054. See also Hurley v. Towne, 155 Me. 433, 436, 438-39, 156 A.2d 377 (1959); LaPlante v. United Parcel Serv., Inc., 810 F. Supp. 19, 21 (D. Me. 1993); Lyons v. Bd. of Dirs. of Sch. Admin. Dist. No. 43, 503 A.2d 233, 236 (Me. 1986). Although Weinstein contends that Narowetz‘s statements to the Dental Board went well beyond the bounds of relevance, Narowetz‘s statements, whether founded or not, were all relevant to Narowetz‘s view of Weinstein‘s actions, Weinstein‘s credibility, and Weinstein‘s motives for filing the complaint against her. Moreover, because the court properly dismissed Counts 1 through 6 of
The entry is:
Judgment affirmed.
JABAR, J., with whom HUMPHREY, J., joins, dissenting.
[¶16] I respectfully dissent because the definition of “actual injury” we adopted in Maietta Construction., Inc. v. Wainwright, 2004 ME 53, ¶ 10, 847 A.2d 1169, and continue to follow is in derogation of our common-law definition of “actual injury” in defamation cases. We should revisit our holding in Maietta to align our definition of “actual injury” in the anti-SLAPP context with our common-law definition. The stated purpose of Maine‘s anti-SLAPP statute is to screen out meritless cases, yet the narrow definition we adopted in Maietta results in the dismissal of meritorious cases. If we were to apply the common-law definition of actual injury in defamation cases, Weinstein‘s case
I. DEFINITION OF “ACTUAL INJURY”
[¶17] I believe that the trial court erred when it dismissed Counts 1, 3, 4, and 5, which contained claims based on complaints made to the Maine Board of Overseers of the Bar, the Massachusetts Board of Bar Overseers, and the United States Postal Service (USPS), for the reason that Weinstein failed to present prima facie evidence of actual injury.
A. Our Interpretation of “Actual Injury”
[¶18] Maine‘s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute,
[¶19] The common-law definition of “actual injury” in defamation cases has always allowed for the recovery of damages without evidence of
We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.
[¶20] We have followed that approach in numerous cases. See Curtis v. Porter, 2001 ME 158, ¶ 19, 784 A.2d 18 (“We have long allowed recovery for mental anguish and loss of enjoyment of life in most tort actions.” (quotation marks omitted)); Rippett v. Bemis, 672 A.2d 82, 88 (Me. 1996) (“[Defamation] damages may include the elements of mental suffering, humiliation, embarrassment, effect on reputation and loss of social standing so far as they have been proved and may reasonably be presumed.“); Saunders v. VanPelt, 497 A.2d 1121, 1126 (Me. 1985).
[¶21] The First Circuit Court of Appeals has provided its interpretation of damages recoverable in a defamation action under Maine‘s common law:
The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of
publication. Gertz, 418 U.S. at 349, 94 S. Ct. 2997. Maine adheres to these traditional rules of defamation law in certain contexts. Under Maine law, defamatory words relating to “profession, occupation or official station” are libelous per se. See Saunders, 497 A.2d at 1124. “When [defamation] per se is established, a plaintiff need not prove special damages or malice in order to recover a substantial award.” Marston v. Newavom, 629 A.2d 587, 593 (Me. 1993). . . . General damages include “elements of mental suffering, humiliation, embarrassment, effect upon reputation and loss of social standing, so far as they . . . may reasonably be presumed.” Saunders, 497 A.2d at 1126 (citing McMullen v. Corkum, 143 Me. 47, 54 A.2d 753, 756 (Me. 1947)).
Galarneau v. Merrill Lynch, Pierce, Fenner & Smith Inc., 504 F.3d 189, 203 (1st Cir. 2007) (last alternation in original).
[¶22] In its section on general damages, the Restatement (Second) of Torts provides that “[o]ne who is liable for defamatory communication is liable for the proved, actual harm caused to the reputation of the person defamed.” Restatement (Second) of Torts § 621 (Am. L. Inst. 1977). The Reporter‘s Notes continue, stating that “‘[a]ctual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, and mental anguish and suffering.‘” Restatement (Second) of Torts § 621 Reporter‘s Notes (quoting Gertz, 418 U.S. at 350).
[¶25] The damages in a contract action involving the enforceability of a liquidated damages clause and an unjust enrichment case have no relationship to the definition of “actual injury” in a defamation case. Maietta was the first time we defined “actual injury” under Maine‘s anti-SLAPP statute, and we erroneously relied upon cases that dealt with the term “actual damages” in the context of a liquidated damages case and an unjust enrichment case instead of following our common law to determine what constitutes “actual injury.” The Maietta court did not explain why it did not follow our traditional definition of “actual injury” in defamation cases, nor did it discuss whether the Legislature,
[¶26] The Court here also quotes Schelling v. Lindell, 2008 ME 59, 942 A.2d 1226, acknowledging the change in common law, Court‘s Opinion ¶ 12, but does not discuss where in the statute or the legislative history the Legislature intended to change the common law.
[¶27] We have unswervingly followed the Maietta approach numerous times in subsequent cases interpreting “actual injury” under our anti-SLAPP statute. In Schelling, relying on the Maietta decision, we rejected the plaintiff‘s argument that the common-law doctrine associated with defamation cases, which allows for the presumption of damages, satisfies the anti-SLAPP‘s “actual injury” requirement. 2008 ME 59, ¶¶ 18-20, 942 A.2d 1226. The Court said:
[T]he statutory requirement that a plaintiff must demonstrate actual injury is not satisfied by the common law rule in libel cases that a plaintiff is not required to demonstrate that she has suffered any specific damages in order to recover on her claim.
. . . .
This is not the first occasion on which we have explicitly held that the presumed ‘damages per se’ traditionally associated with libel or slander relating to one‘s trade or business do not satisfy the actual injury requirement of the statute. See, e.g., Maietta Constr., Inc., 2004 ME 53, ¶¶ 9, 10, 847 A.2d at 1173 at 1173-74.
[¶28] We have held that the Legislature must be clear when it changes the common law. See Batchelder v. Realty Res. Hosp., LLC., 2007 ME 17, ¶ 23, 914 A.2d 1116 (“[W]e have long embraced the well-established rule of statutory construction that the common law is not to be changed by doubtful implication, be overturned except by clear and unambiguous language, and that a statute in derogation of it will not effect a change thereof beyond that clearly indicated either by express terms or necessary implication.” (quotation marks omitted)); Ziegler v. Am. Maize-Prods. Co., 658 A.2d 219, 223 (Me. 1995) (“[L]egislative pronouncement[s] embodied in [a statute] alter[] common law only to the extent the Legislature has made that purpose clear.“).
[¶29] Requiring a litigant to prove a quantifiable loss to prove actual injury in response to a special motion to dismiss in a defamation case is in derogation of our common law. In 2012, in a concurring opinion in Nader v.Maine Democratic Party (Nader I), 2012 ME 57, 41 A.3d 551 (Silver, J., concurring), Justice Silver warned about the use of this procedural mechanism to substantively change our common law:
Because of the way the statute has been misused with respect to its intended purpose, treating it as a substantive abrogation of common law claims has become very problematic; it serves to bar legitimate, valid claims that are brought in good faith, regardless of whether a plaintiff would be able to meet her burden on a motion to dismiss or for summary judgment. While the Legislature may have the authority to do so, there is no indication that it intended to do so.
[¶30] As a result of changing the common-law definition of “actual injury,” we are violating one of the guiding principles of anti-SLAPP law—to screen out “meritless” cases, a principle we have consistently restated. See Thurlow v. Nelson, 2021 ME 58, ¶ 9, 263 A.3d 494; Hamilton v. Drummond Woodsum, 2020 ME 8, ¶ 17, 223 A.3d 904; Hearts with Haiti, Inc. v. Kendrick, 2019 ME 26, ¶ 14, 202 A.3d 1189; Desjardins, 2017 ME 99, ¶ 6, 162 A.3d 228; Bradbury v. City of Eastport, 2013 ME 72, ¶ 9, 72 A.3d 512; Nader I, 2012 ME 57, ¶ 22, 41 A.3d 551; Schelling, 2008 ME 59, ¶ 6, 942 A.2d 1226; Maietta Constr., Inc., 2004 ME 53, ¶ 6, 847 A.2d 1169; Morse Brothers, Inc., v. Webster, 2001 ME 70, ¶ 15, 772 A.2d 842. Both the highest courts of other states and academic analysts have made similar statements regarding the basic purpose of these statutes. See Davis v. Cox, 351 P.3d 862, 874-75 (Wash. 2015); Duracraft Corp.v. Holmes Prods. Corp., 691 N.E.2d 935, 940-41 (Mass. 1998); Steven J. Andre, Anti-SLAPP Confabulation and the Government Speech Doctrine, 44 Golden Gate U. L. Rev. 117, 119 (2014); Leah McGowan Kelly, Election SLAPPS: Effective at Suppressing Political Participation and Giving Anti-SLAPP Statutes the Slip, 66 Me. L. Rev. 191, 192 (2013); John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPS, 26 Loy. L.A. L. Rev. 395, 399 (1993).
[¶31] In several of our anti-SLAPP cases, we have followed the approach utilized by the Massachusetts Supreme Judicial Court. See Gaudette v. Mainely Media, LLC (Gaudette II), 2017 ME 87, ¶ 14 & n.2, 160 A.3d 539; Nader I, 2012 ME 57, ¶ 22 & n.9, 41 A.3d 551; Morse Brothers, Inc., 2001 ME 70, ¶¶ 15, 17, 772 A.2d 842. Like us, the Massachusetts Supreme Judicial Court emphasizes the importance of screening out meritless cases. See, e.g., Duracraft Corp., 691 N.E.2d at 942-43. Recently, the Massachusetts Supreme Judicial Court dealt with the definition of “actual injury” in the context of a second-stage analysis under the Massachusetts anti-SLAPP statute. In 477 Harrison Ave., LLC v. JACE Boston, LLC (Harrison I), 74 N.E.3d 1237 (Mass. 2017), the Massachusetts Supreme Judicial Court held that the plaintiff demonstrated that the defendant‘s action caused “actual injury” under the second step in a special motion analysis because the instigation of criminal charges caused him “embarrassment” and he “feared” for his financial
[¶32] In Harrison II, the court considered the affidavit of the plaintiff and said the following:
For purposes of the second stage, we consider the pleadings, as well as the “supporting and opposing affidavits stating the facts upon which the liability or defense is based.” In Harrison I, for example, we concluded that the developer met its second-stage burden of demonstrating “actual injury” caused by the abutters’ application for a criminal complaint by means of an affidavit from the developer‘s manager stating that he suffered “embarrassment,” “that he had to attend a probable cause hearing, and that he feared for the financial health of the plaintiff if the complaint had spawned criminal charges.”
Harrison II, 134 N.E.3d at 100 n.3 (citations omitted).
[¶33] Once again, we should follow the approach used by the Massachusetts Supreme Judicial Court. Instead, by following the approach we adopted in Maietta, we are violating the primary purpose of anti-SLAPP statutes. As in this case, if a plaintiff alleges defamation and loss of reputation because of an allegation of criminal conduct without any allegation of a
[¶34] As a result of the Maietta approach, the law presents an illogical policy allowing meritorious cases to be screened out by the anti-SLAPP statute. For example, if Weinstein had claimed the cost of one therapist visit as damages, he would survive this special motion to dismiss and the case would proceed. In his case before a jury, Weinstein would not be limited to the cost of the one therapist visit, but he would be able to claim all damages available under our common law in a defamation case, including loss of reputation, embarrassment, and loss of standing in the community.
[¶35] It is time to revisit our holding in Maietta and define “actual injury” under Maine‘s anti-SLAPP statute consistently with our traditional definition of “actual injury” in our common law.
[¶36] I recognize the doctrine of stare decisis and our consistent reliance on Maietta in the eighteen years following the decision; however, there are good reasons to revisit our holding in Maietta. It is true that it is our policy, historically, to “stand by precedent” and not “disturb . . . settled point[s] of law.” Myrick v. James, 444 A.2d 987, 997 (Me. 1982). However, we also recognize that precedents “do not become totally immune from change for all time.” Id. at 998.
[S]tare decisis is not an inflexible rule requiring this court to blindly follow precedents and adhere to prior decisions[,] . . . [and] when it appears that public policy and social needs require departure from prior decisions, it is our duty as a court of last resort to overrule those decisions and establish a rule consonant with our present day concepts of right and justice.
Id. (quotation marks omitted). “[W]e also recognize the dangers of a blind application of [stare decisis] merely to enshrine forever earlier decisions of this court.” Id. (quotation marks omitted). Finally, “where the authorities supporting the prior rule have been drastically eroded and the suppositions on which it rested are disapproved in the better considered recent cases and in authoritative scholarly writings, and the prior holding of the prior case is counterproductive to its purposes, the situation is appropriate for legal change by the court‘s decision.” Id. at 998-99 (alternations and quotations marks omitted).
[¶38] We have a tortured history as a court in dealing with many aspects of this statute. We struggled with the burden of proof in special motions brought under the statute. Initially we held that the defendant/moving party was to be given the benefit of all favorable inferences, Morse Brothers, Inc., 2001 ME 70, ¶ 18, 772 A.2d 842, a rule that we characterized as a “converse-summary-judgment-like standard,”9 Nader I, 2012 ME 57, ¶ 32, 41 A.3d 551.
[¶39] Six years later, in Gaudette v. Davis (Gaudette I), 2017 ME 86, 160 A.3d 1190, we described the problem of reconciling the plaintiff‘s constitutional right to access the courts with the defendant‘s right to petition the government as a “tension between at least these two coexistent constitutional rights.” Id. ¶ 6. We abandoned the approach we adopted in Nader I by holding that the plaintiff‘s presentation of prima facie evidence as to the elements necessary to defeat a special motion to dismiss was not sufficient to defeat a special motion, and we added a third step whereby the trial court would review affidavits or conduct an evidentiary hearing and then adjudicate disputed facts by a preponderance of the evidence. Id. ¶¶ 16-18. Then, four years later in Thurlow, we admitted that we had gone too far in Gaudette I because we infringed upon another constitutional right—the plaintiff‘s right to have a jury decide disputed issues of fact. Thurlow, 2021 ME 58, ¶¶ 16-19, 263 A.3d 494. We held that this third step violated the plaintiff‘s right to have a jury decide disputed facts.10 Id.
[¶40] The Washington Supreme Court, in holding that the Washington anti-SLAPP statute was unconstitutional, stated, “We hold [Washington‘s anti-SLAPP statute] violates the right of trial by jury under article I, section 21 of the Washington Constitution because it requires a trial judge to invade the jury‘s province of resolving disputed facts and dismiss—and punish—nonfrivolous claims without a trial.” Davis, 351 P.3d at 875 (emphasis added).
[¶41] Members of this Court have also raised constitutional concerns about this law in the past. In his concurrence to Nader I, Justice Silver wrote that “[t]he analytical acrobatics necessary here to reconcile the Constitution with the language of the statute and with our previous interpretations of it indicates that, as written, this statute presents serious constitutional questions.” Nader I, 2012 ME 57, ¶ 51, 41 A.3d 551 (Silver, J., concurring). More recently in Franchini v. Investor‘s Business Daily, Inc., 2022 ME 12, Justice Hjelm also called attention to issues with the statute, stating that “[i]f anything, the problems inherent in [Maine‘s anti-SLAPP statute], and our continuing efforts to fashion
[¶42] After a review of our jurisprudence in the context of the numerous changes we have made with our interpretations of this flawed statute it does not make any legal sense to continue following the prevailing precedent adopted in Maietta. It would have been better for the Legislature to give us guidance on whether it intended to change the common-law definition of “actual injury” and what standards we should be following in reviewing special motions to dismiss.
[¶43] Moreover, the decision for us “is less a matter of honoring stare decisis than a matter of resolving the sharp and hitherto unexplained conflict” between our anti-SLAPP jurisprudence and the common law of defamation. Bank of N.Y. Mellon v. Shone, 2020 ME 122, ¶ 23, 239 A.3d 671. We should resolve this conflict and harmonize the law by construing “actual injury” under Maine‘s anti-SLAPP statute consistently with our common-law definition of “actual injury.”
[¶44] Weinstein has alleged damages that would be recoverable in a defamation lawsuit brought in Maine. In his complaint and affidavit, he alleges a loss of his reputation, a loss to his standing in the community, and/or emotional distress as follows.
- Paragraph seventeen of Weinstein‘s complaint states: “These statements have caused actual harm to Plaintiff‘s reputation and livelihood and have inflicted emotional distress.”
- Paragraph twenty-one of Weinstein‘s complaint states: “The statements either are defamatory per se or caused special harm to the plaintiff, in that the Defendant‘s statements harmed the character and reputation of the plaintiff . . . .”
- Paragraph nineteen of the Weinstein‘s affidavit states that he was “caused to suffer embarrassment, shame and emotional distress.”
- Paragraph twenty-five of Weinstein‘s affidavit states: “These statements have caused actual harm to my reputation with members of those Boards [Maine and Massachusetts Overseers of the Bar].”
[¶45] For the reasons stated above, I believe that we should conclude that Weinstein has satisfied the requirement of presenting a prima facie case of actual injury under Maine‘s common law.11 There is merit to Weinstein‘s case,
and but for our narrow definition of “actual injury,” he would be entitled to proceed forward with his case.
II. PRIVILEGE
[¶46] The Court‘s opinion holds that Narowetz was entitled to absolute immunity regarding her testimony before the Dental Board, but it does not discuss whether Narowetz was entitled to any immunity regarding complaints she made to the Overseers of the Bar in Maine and Massachusetts and the USPS. Court‘s Opinion ¶ 15. The Court‘s opinion does not discuss those claims because it affirms the trial court‘s dismissal of those claims pursuant to Narowetz‘s special motion to dismiss brought under Maine‘s anti-SLAPP statute. Court‘s Opinion ¶ 14. Because I believe that we should vacate the dismissals made by the trial court pursuant to Narowetz‘s special motion, we need to address whether Narowetz was protected by immunity regarding those claims.
[¶48] Here, Narowetz made complaints to various regulatory agencies. She filed a complaint with the Overseers of the Bar in Maine and Massachusetts, alleging harassment and intimidation by Weinstein. She also made a complaint to the USPS, alleging that Weinstein was impersonating a postal employee, a federal crime. These statements are allegedly defamatory in that they pertain to Weinstein‘s profession as a lawyer and accuse him of violating the law.
[¶49] The Court relies upon a number of cases to support its conclusion that Narowetz was entitled to absolute immunity, see Court‘s Opinion ¶ 15, but none of these cases specifically speak to Weinstein‘s claims relating to Narowetz‘s complaints to the regulatory agencies. In Truman, 2001 ME 182, ¶ 15, 788 A.2d 168, we relied on Baker v. Charles, 919 F. Supp. 41, 44 (D. Me. 1996), a Maine federal district court case that held that qualified privilege applied to communications to a government agency like Maine‘s Land Use Regulation Commission, and we also adopted section 598 of the
[¶50] Although Narowetz is entitled to absolute immunity for her communications with and testimony before the Dental Board, see LaPlante v. United Parcel Serv., Inc., 810 F. Supp. 19, 21 (D. Me. 1993), her statements to the Maine Board of Overseers of the Bar, the Massachusetts Board of Bar Overseers, and the USPS are entitled to only qualified immunity, see Truman, 2001 ME 182, ¶ 15, 788 A.2d 168.
D. Conclusion
[¶51] Thus, although I agree that Count 2 of Weinstein‘s complaint, which alleges slander in the proceedings before the Board of Dental Practice Board, was properly dismissed, I would vacate the Superior Court‘s judgment dismissing Counts 1, 3, 4, and 5 upon Narowetz‘s special motion to dismiss brought under Maine‘s anti-SLAPP statute. Furthermore, because I believe that Narowetz‘s statements made to the Maine Board of Overseers of the Bar, the Massachusetts Board of Bar Overseers, and the USPS were entitled only to qualified immunity, Counts 1, 3, 4, and 5 should not be dismissed pursuant to
STANFILL, C.J., dubitante.12
[¶52] I think the tortured evolution of our anti-SLAPP jurisprudence has taken several wrong turns. As recently stated, “our jurisprudential efforts to properly interpret and determine the proper use of section 556 and the process governing it have been valiant, but the results have been nothing short of fluid.” Franchini v. Inv.‘s Bus. Daily, Inc., 2022 ME 12, ¶ 51, --- A.3d --- (Hjelm, A.R.J., dissenting).13 I agree that our case law interpreting
[¶53] There is value in correcting our course if we have erred, but I share the concern publicly expressed by other jurists that when we easily overrule precedent, we risk further undermining public confidence in the independence of the courts at a time when that public confidence has waned.14 I invite the Legislature to revisit the anti-SLAPP statute in light of legal developments in Maine and other states since it was enacted.
Janna L. Gau, Esq., and Alfred J. Falzone III, Esq. (orally), Eaton Peabody, Bangor and Portland, for appellees Old Orchard Beach Family Dentistry, LLC, and Marina Narowetz
York County Superior Court docket number CV-2020-71
FOR CLERK REFERENCE ONLY